Gould v R; R v Gould

Catchwords

[2017] HCA 37 - Whether the sentencing judge was entitled to sentence in accordance with Cheung v The Queen (2001) 209 CLR 1Maris v R [2021] NSWCCA 17 Burr v R [2020] NSWCCA 282 Cheung v The Queen (2001) 209 CLR 1[2001] HCA 67 Chiro v The Queen (2017) 260 CLR 425[2017] HCA 37 Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342[2020] FCAFC 30 DL v The Queen (2018) 266 CLR 1(2015) 250 A Crim R 544 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89[2007] HCA 22 Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29 Gregg v R [2020] NSWCCA 245(2020) 355 FLR 348 Hamra v The Queen (2017) 260 CLR 479[2017] HCA 38 Hassan v R [2018] NSWCCA 213 House v The King (1936) 55 CLR 499[1936] HCA 40 Hua Wang Bank Berhad v Federal Commissioner of Taxation [2014] FCA 1392(2014) 100 ATR 244 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51[1996] HCA 24 Kaddour v R [2017] NSWCCA 294 Kalbasi v Western Australia (2018) 264 CLR 62[2018] HCA 7 KBT v The Queen (1997) 191 CLR 417

Judgment (54 paragraphs)

[1]

Background facts

The appellant, who was born in 1948, is a chartered accountant by training and qualification. He lived and worked in Australia. He was associated with several companies of which other people were directors and shareholders.

[2]

The role of Peter Borgas

Peter Borgas was a citizen of Belgium who qualified as a solicitor in England. He provided corporate services, including providing nominee directors and other corporate officers, from Neuchatel, Switzerland, where he lived with his wife, Winny, who also acted as a director of various companies to which Mr Borgas provided corporate services.

[3]

The share structure of the relevant companies

Mr and Mrs Borgas were directors of various companies associated with the appellant, including Chemical Trustee Ltd (C), Derrin Brothers Properties Ltd (D) and Bywater Investments Ltd (B). C and D were incorporated in England and B was incorporated in the Bahamas. The shares in each of these companies were ultimately held by either or both of JA Investments Limited (JA) and MH Investments Limited (MH) (the parent companies) through three nominee companies: Guardheath Securities Ltd (G), Lordhall Securities Ltd (L) and Anglore SARL (A) (the nominee companies). Both of the parent companies were incorporated in the Cayman Islands.
G and L were UK companies controlled by Lubbock Fine, a firm of chartered accountants in London, who provided accounting services to B, C and D. Hasmukh Vara was the principal point of contact. A was based in Switzerland and was operated by Mr and Mrs Borgas.

[4]

The articles of association of the parent companies

The articles of association of the parent companies were materially the same. Article 1(b) defined "the Appointor" as the "person or persons nominated as such by instrument in writing signed by the members and deposited at the Registered Office of the Company".
Article 3 provided as follows: "The subscribers to the Memorandum of Association and such other persons as are admitted to membership in accordance with these Regulations shall be members of the Company. No person shall be admitted as a member of the Company unless he is nominated in writing by the Appointor or, after the death of the Appointor, his legal personal representatives (and the survivors and survivor of them) at the date of his death but the Appointor shall not be entitled to nominate himself. Every person who wishes to become a member of the Company shall deliver to the Company an application for membership in such form as the Directors may require signed by the applicant and accompanied by the requisite nomination, and on receipt of same by the Company the applicant shall be admitted to membership."
Article 81 provided that on a winding up of the company, each of the members would be entitled to US$100 but would have no further right to participate in the surplus assets of the company, which would be distributed in accordance with a written instrument signed by "the Appointor".
There were documents which the Australian Taxation Office (ATO) obtained from the Cayman Islands which indicated that the appellant was the appointor of both the parent companies.

[5]

The taxation audit

In 2009 the ATO commenced an audit into offshore entities connected with the appellant; clients of his accounting firm, Gould Ralph; and associated entities. The audit included five companies incorporated in foreign jurisdictions: C, D and B, as well as Hua Wang Bank Berhad (H) and Southgate Investment Funds Ltd (S).
As a result of the audit the Deputy Commissioner of Taxation (the Commissioner) considered that B, C and D were residents of Australia within the meaning of s 6 of the Income Tax Assessment Act 1936 (Cth) because they were controlled by the appellant. On this basis, the Commissioner, in August 2010, issued assessments of income tax to B, C and D, as well as H and S, on the basis of profits derived from sales of shares in Australia (the ATO assessments). The total amount of tax assessed was in the order of $14.3m.

[6]

Commencement of proceedings in the Federal Court of Australia

On 16 May 2011, B, C and D commenced proceedings in the Federal Court to challenge the ATO assessments. They argued that Mr Borgas controlled them and that, as he was resident in Switzerland and was a citizen of Belgium, the ATO assessments ought be set aside. Although B, C and D accepted that the appellant provided advice and recommendations to their directors, including Mr Borgas, they contended that he did not exercise control over them.
Mr Borgas swore an affidavit on 7 February 2012 in the Federal Court proceedings in which he deposed that he was the sole shareholder of JA and MH and was, and had always been, the beneficial owner of those companies since they were established in the 1990's. He deposed that he did not hold the shares in either company as a nominee or fiduciary. He acknowledged that the appellant provided him with advice and recommendations but denied that the appellant controlled the companies or directed their operation.
In about April 2013 (about a year after he had sworn his affidavit) it became apparent that Mr Borgas would have to come to Australia since his affidavit was to be relied upon by B, C and D and the Commissioner required him for cross-examination.

[7]

The Q & A documents and the preparation of Mr Borgas for cross-examination

From about April 2013, the appellant sent to Mr Borgas various iterations of a document which set out questions which he might be asked in cross-examination in the Federal Court proceedings, and the suggested answers to those questions (the Q & A document).

[8]

The June 2013 Q & A document

The first iteration of the Q & A document in evidence bore the footer "PB - April 2013 - Grouped - 20 June 2013" (the June 2013 Q & A document). It contained 305 questions and answers, which included the following: No. Question Answer Personal background/Association with Vanda Gould & John Leaver 1 Are you a wealthy man? Yes, the net worth of my corporate group is more than CHF 100,000,000. 2 (a) Please tell us the names of the companies that you, personally, own? (a) [A], [JA] and [MH]. These companies control approximately 30 other companies. … … … 5 How wealthy would you say you were in 1980? I don't know. It is hard to say. In 1980 I was essentially a solicitor employer by J H Heinz in the UK and in 1983/84 by Fairburn & Kwok in Hong Kong. How wealthy would you say you were in 1990? In 2010? The value of my investments evolved exponentially, not from trading but capital growth … 6 As a matter of personal style, why do you conduct your business through so many different companies in all these different jurisdictions? To limit liability and based on legal advice from Bishop & Sewell. It is best to have smaller holdings of a particular share as it is easier to sell a small parcel. … 9 Please describe for this court how many cars you own. I have the use of a BMW owned by Anglore. … 64 Do you think the central management and control is in Australia? No, no more than it exists in Malaysia with Normandy Nominees. I am too far away not to rely on local knowledge and an overview of what is happening. But I make all the major decisions concerning administration, particularly financial commitment. … C]/[D]/[B]/Russell Associates … 107 … … (b) Isn't it the case that you administer [C] for [the appellant, and [D] for John Leaver? (b) I do not administer [C] for [the appellant] nor do I administer [D] for John Leaver. … [JA] and [MH] … 185 Is it true that there exists a Power of Appointment for [JA]? Yes 186 Who holds the Power of Appointment for [JA]? Vanda [the appellant] presently holds that position. 187 What do you know about the Appointer's powers? It only becomes relevant in the event of my death as he potentially would be able to protect the interests of people who have loaned money to [JA] and the companies it controls. 188 Has [the appellant] ever used his Power of Appointment? To my knowledge, never. But [the appellant] has discussed FCM issues with me from time to time. … Questions you don't know the answers to ● I would be guessing. ● I have no present recollection. ● Please ask my lawyers. ● Please ask Hasmukh, he may know. ● Your best answers are: - Yes - No - I don't recall

[9]

The Australian Federal Police obtained a warrant to intercept the appellant's telephone. Recordings of conversations were played to the jury and transcripts were marked for identification for use as an aide-memoire. As a consequence, the evidence of the conversations did not depend on Mr Borgas's oral evidence.
On 6 June 2013, the appellant phoned Mr Borgas and told him that he needed to go through "these questions" to "try to get some practise [sic] on them". It was common ground that the questions were those in one of the Q & A documents provided to Mr Borgas. A transcript of the call was admitted in the Crown case in the District Court.
On 9 July 2013, the appellant provided further questions and answers to Mr Borgas under cover of a letter which said: "The critical thing to see is that your best answer will usually be 'Yes' or 'No'. The more elaboration opens the door for more questions. In fact, it is better to say 'I don't know' or 'I don't recall' than to open the door. You are not required to guess. Sometimes you could say 'I don't know - I would only be guessing.' Please understand that the ATO wants to believe you are just a puppet for me. They are frustrated by the lack of documents to prove their case and they will lean on you. Keep saying 'You have everything Both Hasmukh and I have provided everything.' This is true and ultimately the Judge will get fed up with them hectoring you. In fact the ATO has many boxes of correspondence so it is all there, but the fact you were so involved as the correspondence shows destroys their puppet theory."
On 24 June 2013, the appellant phoned Mr Borgas, who told him that an envelope had arrived that morning but that he had not had an opportunity to look at it. The appellant said, "when you're ready that's just a further updated you know story you can throw out the other ones." The appellant referred to Mr Borgas's cross-examination in the Federal Court as an "exam".
On 1 August 2013, the appellant phoned Mr Borgas again to arrange a time to "give [Mr Borgas] some practice on the questions". The appellant suggested that they have a "practice run" the following Thursday and asked Mr Borgas to "flick" through his "notes" in preparation.
On 8 August 2013 (which was the following Thursday), the appellant phoned Mr Borgas on Skype to rehearse the questions and answers by reference to the Q & A document (which is relevantly extracted above). Mr Borgas recorded the call on his dictaphone to help him remember what the appellant had told him. The following exchange occurred between them concerning the answer to question 1(a) (see above extract from Q & A document): "BORGAS: Do I have to learn these - these companies by heart so that I can recite them by heart? GOULD: No, no, no. Look at A. So basically you personally own. Now listen to the question. Most of the companies you don't personally own. BORGAS: No, because they are -- they are owned by JA Investments, MH Investments and they're cojoint. GOULD: Correct. So basically but in terms of ones you personally own, look at A [(a)]. Look at answer A. BORGAS: Yes. It's JA and MH and I- I don't -I don't actually own Anglore. Ifs Winny who owns Anglore. But anyway, that's - - - GOULD: Okay. Well, that- that's fine. So, basically, we'll say the only ones I [Borgas] personally own are JA and MH."

[10]

The hearing in the Federal Court

The Federal Court proceedings were heard by Perram J in September, October and November 2013. Ms Seiden SC, who appeared with Mr Hyde-Page for B, C and D in the Federal Court, read Mr Borgas's affidavit of 7 February 2012.

[11]

Mr Borgas's evidence on 10 October 2013

On 10 October 2013, Mr Borgas gave brief oral evidence in chief and between 10 and 15 October 2013 was cross-examined about decisions made by him in his capacity as a director of B, C and D.
On 10 October 2013, in his evidence in chief, Mr Borgas confirmed that he was the beneficial owner of JA and MH. He was asked about article 3 of the Articles of Association of JA and MH and, in particular, why there was an "Appointor" mentioned in article 3, to which he responded: "[T]here are a group of companies … which hold money for third parties. Now, the appointor: his role is to step in in the event of my death so as to ensure that the parties who are owed money, or have other assets that are held on a nominee basis, receive those assets back in the administration of my estate, and the appointer is responsible for ensuring that nominee assets don't go with my estate but go back to the party for whom they're held on a nominee basis."
Mr Borgas identified the appellant as the appointor for JA and MH. When he was cross-examined about the effect of article 3 (set out above), he asked for time "to consider and to consult". Before the afternoon adjournment, Perram J directed Mr Borgas not to discuss his evidence as he remained under cross-examination. The transcript recorded that Mr Borgas "withdrew" at 4.20pm on 10 October 2013.

[12]

Mr Borgas's consultation with the appellant after court on 10 October 2013

At 4.32pm on 10 October 2013 the appellant rang an unknown male who said: "… things didn't go so well this afternoon there's a lot of things that PETER [Mr Borgas] needs to discuss with you I think."
Mr Borgas came on the line and told the appellant that "they've gone for the jugular … on the question of the appointor in relation to JA and MH … and they've raised a couple of questions which I think um we we really need to sit together and discuss." The appellant arranged to meet Mr Borgas at his hotel.
At 5.38pm, Mr Vara phoned the appellant, who reported that he was with "the young man" (Mr Borgas). Later, at 6.35pm, the appellant rang John Leaver, a stockbroker associated with B, C and D, to discuss what had occurred in court that day. The appellant told Mr Leaver that he had "worked through" the issue with "him" (Mr Borgas). Mr Leaver said to the appellant that he thought Mr Borgas's "other answer in the sense of not remembering or not knowing it was quite a good answer as a stop gap sort of thing", to which the appellant responded, "correct correct absolutely absolutely".

[13]

Mr Borgas's evidence on 11 October 2013

When the Federal Court resumed at 10.13am the following morning, 11 October 2013, Mr Fagan SC, who appeared for the Commissioner, asked Mr Borgas about article 3. Mr Borgas responded by referring to article 1(b).
Mr Borgas purported to withdraw the concession he had made the previous day that the appellant was the appointor and said that he was not aware of any document which complied with article 1(b). Mr Borgas described the appellant's role as a "protector", rather than an appointor.

[14]

The determination of the Federal Court proceedings

At the conclusion of the Federal Court proceedings, Perram J reserved his decision, which was published on 19 December 2014: Hua Wang Bank Berhad v Federal Commissioner of Taxation [2014] FCA 1392; (2014) 100 ATR 244. His Honour did not believe Mr Borgas's evidence and found that B, C and D were controlled by the appellant. The judgment was referred to in the sentence proceedings but was not before the jury, as the Crown did not need to prove that the evidence had actually perverted the course of justice.

[15]

The charging of Mr Borgas and the appellant

On 15 October 2013, Mr Borgas was arrested at Sydney airport. There was a version of the Q & A document in his possession, dated 3 October 2013, which was seized. It was the Crown case that this was the final version of the Q & A document and had been used by Mr Borgas in the proceedings.
The appellant was also arrested on 15 October 2013. He was charged with tax evasion and money laundering offences. He was released on conditional bail on 17 October 2013.
On 13 May 2014, the Commonwealth Director of Public Prosecutions (the DPP) withdrew the charges against the appellant. On 15 September 2016 the appellant was charged with conspiracy to pervert the course of justice contrary to s 42 of the Crimes Act. On 4 April 2017 he was committed for trial in the District Court, following waiver of the committal hearing.
On 26 June 2017, the DPP filed and served an indictment charging the appellant with two offences: count 1, giving false testimony (s 35(1) of the Crimes Act); and count 2, attempt to pervert the course of justice (s 43 of the Crimes Act).

[16]

The first trial

The appellant's first trial commenced before Norrish QC DCJ and a jury on 31 July 2018. Mr Dhanji SC appeared for the appellant. What occurred in the first trial is relevant only because the warning given in the second trial (which is the subject of ground 2(b)) derived from the warning sought on behalf of the appellant in the first trial.
On 13 August 2018, in the absence of the jury, Mr Dhanji confirmed that the appellant would seek a warning pursuant to s 165 of the Evidence Act 1995 (NSW), which relevantly provides: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence - … (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, … (2) If there is a jury and a party so requests, the judge is to - (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. (5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury. …"
Mr Dhanji identified various bases on which a warning was required: first, that Mr Borgas was a person who might reasonably be supposed to have been criminally concerned in the events giving rise to counts 1 and 2; that he was a person who admitted telling lies while on oath in other proceedings; and that he had obtained an undertaking from the DPP that he would not be charged. Judge Norrish proposed the following direction: "[Mr Borgas's] evidence for these various reasons must be scrutinised with great care because of the circumstances in which the witness has come forward. His evidence may be unreliable. He may well be trying to exculpate himself from the relevant events to minimise his part by fabricating the role or exaggerating the role of others. Further, he may fabricate or exaggerate allegations out of spite, revenge or antipathy towards the accused or for reasons which are not known. There may be other reasons for him to falsely implicit [scil. implicate] the accused that are not readily apparent or more importantly incapable of exposure. A person who wishes to shift blame will falsely implicate another for his own benefit may be persuasive and be capable of pretending that they are truthful in their recounting of events. You need to scrutinise his evidence with great care, considering any evidence independent of him that supports his version of events."

[17]

The second trial

On 18 February 2019, the DPP informed the appellant that she had determined to proceed to a retrial of the appellant on a single count (which had formerly been count 2) which charged that between 1 January 2012 and 20 November 2013 the appellant attempted to pervert the course of justice in relation to the Federal Court proceedings between H, C, D, B, S and the Commissioner, being a judicial power of the Commonwealth.

[18]

The particulars

The particulars of the charge were that between about April 2013 and 15 October 2013: 1. The appellant encouraged Mr Borgas to assert or confirm in evidence that he made decisions for C, D and B on the appellant's advice but not at his direction. 2. The appellant encouraged Mr Borgas to say that he was the beneficial owner of C, D and B. 3. The appellant encouraged Mr Borgas to assert or confirm that he was the beneficial owner of JA and MH. 4. The appellant encouraged Mr Borgas to assert or confirm that he, not the appellant, controlled and managed the affairs of C, D and B. 5. The appellant offered Mr Borgas an unspecified inducement to give evidence.
The Crown contended that proof of any one of the particulars would suffice for proof of the charge.

[19]

The Crown case

The trial commenced before Wilson SC DCJ on 29 October 2019. The Crown case comprised documentary evidence, which included summaries pursuant to s 50 of the Evidence Act; business records; material obtained from the Cayman Islands, recordings of telephone intercepts; and oral evidence.
Mr Borgas was the principal Crown witness and was called on 29 October 2019 immediately after opening addresses and the tender of agreed facts and a s 50 summary. He remained in the witness box until the eleventh day of the trial. His evidence in chief was completed on the seventh day (7 November 2019). He was cross-examined from 7 November 2019 until 13 November 2019. There was no re-examination. The only other witness in the Crown case was Phyllip Chapman, a Federal Agent, through whom documents associated with the investigation (such as s 50 summaries) were tendered.
Mr Borgas was asked about documents in the Crown's tender bundle (which was marked Exhibit C). The documents in Exhibit C included his affidavit in the Federal Court proceedings (referred to above). Mr Borgas gave evidence in chief that this affidavit "contain[ed] lies" which he told because the affidavit said what he believed the appellant wanted him to say. He said that it became apparent in about April 2013 (about a year after he had sworn his affidavit) that he would have to come to Australia (from Switzerland) to be cross-examined in the Federal Court proceedings. He gave evidence that he was prepared to allow himself to be induced to give false evidence.
Mr Borgas's understanding was that "it was decided" that the best way of preparing him to give evidence was to send him (by post) "a Q & A document which set out the evidence that [he] was to give … in the hope that that would defeat the … claim of the Tax Office". His evidence was that he received no more than six or seven versions of the Q & A document between April and October 2013. His usual practice was to throw away the previous version when he received a subsequent version so that he was "only looking at one version at a time".
The documents in Exhibits C and D were tendered by the Crown to show the falsity of the matters in particulars (1) to (4). It is unnecessary, for present purposes, to set out all of the Crown's evidence on each particular. It is sufficient to note that the documents relied on in support of particular (1) (that to the extent to which Mr Borgas purported to make decisions for C, D and B he did so at the appellant's direction) included documents in the following categories: 1. Written communications from the appellant to Lubbock Fine instructing them as to investments by B, C, or D or informing them that they would shortly be receiving instructions from Mr Borgas to effect transactions on behalf of B, C or D; 2. Written communications from Mr Borgas or Mr Vara to the appellant when decisions needed to be made by B, C or D; 3. Written communications from Mr Borgas to the appellant forwarding transactional documents or informing him about transactions entered into by B, C and D (which, on the Crown case, were inconsistent with his purported role of advising on share purchases or Australian accounting matters); 4. Documents which evidenced the appellant's involvement in routine matters concerning B, C and D, including consolidation of shareholdings and changes of address on company registers; 5. Minutes of meetings of B, C and D which were attended by Mr Borgas and his wife which lacked any detail about the transactions entered into by the companies; 6. Documents which showed that the audited accounts of C and D were not finalised until the appellant approved them; 7. The frequency with which documents concerning B, C or D contained the footer "Van.doc" or "v.doc", which was associated with the appellant; 8. References in communications between the appellant and Mr Borgas to "the mutual client", which, on the Crown case, was a reference to the appellant but was designed to obscure his involvement; 9. Intercepted telephone communications in which the appellant gave Mr Borgas directions about transactions to which B, C, and D were parties; and 10. The circumstance that A's business was to provide nominee directors and shareholders.

[20]

The Crown address

Madam Crown commenced her address on 15 November 2019. She told the jury that the Crown relied on the evidence of Mr Borgas as well as the documentary evidence and urged the jury to consider all of the evidence, as is evident from the following extract from its address: "Mr Borgas has come to this Court and has given evidence before you to assert that he's telling the truth in this trial and that he lied in the Federal Court proceedings. It's a matter for you to determine whether to accept Mr Borgas' evidence that he lied in the Federal Court at the encouragement or inducement of the accused. You heard cross-examination that Mr Borgas has a motive to lie in this Court and that the undertaking itself provides him with the motive to lie. The question is, in this Court was Mr Borgas telling the truth or was he throwing the accused under the bus in order to get a benefit to himself. In order to get himself off potential charges. I anticipate a submission from the defence that you should find that Mr Borgas lied in this Court and that he had a specific motive to lie and that was to protect himself, to give himself a benefit. As I said in my opening address you must be cautious when you're assessing Mr Borgas' evidence. You will no doubt hear submissions with some force from the defence in relation to potential inconsistencies in Mr Borgas' evidence, between what occurred in his police interview, in the Federal Court proceedings, in this trial, and I anticipate a submission from the defence that Mr Borgas lied to you. The Crown does not hide from the fact that Mr Borgas has lied. That he lied in the Federal Court proceedings. Now when you think about it Mr Borgas has lied somewhere. Because the two don't sit together. In the Federal Court proceedings Mr Borgas gave evidence that he was the beneficial owner of Chemical Trustee, Derrin Brothers Bywater, JA and MH, and that he controlled and managed those companies. In this Court Mr Borgas has said that those statements were lies and in this Court he has said to you that he did not control those companies and that he was not in reality the beneficial owner of JA, MH and the three companies that fall underneath those parent companies, Chemical Trustee, Derrin Brothers and Bywater. You can see the two don't fit together. Either his evidence in the Federal Court is a lie or his evidence here is a lie. They can't both be the truth. It is a difficult task that you face, trying to figure out what is a lie and what is the truth. I don't envy you. But what the Crown says in this case, and this is why I come back and why I said actually on the Crown's case the three most important documents are the Q & A document, the Skype recording, and the telephone intercepts, is because the Crown does not rely solely on Mr Borgas' evidence in this trial. What the Crown submits is that you can look at all of the other evidence in the Crown case. The answers given in the question and answer. How the accused coached Mr Borgas in the Skype recording, and also all of the documents and exhibits say it's going to be a little tiresome but I'm going to have to take you through every single one of those documents, for the reason that there are still some documents in exhibit C which you haven't seen yet, the reason being that Mr Borgas was not a party to some of the correspondence, and it's the Crown's case that when you consider all of the evidence together, including the objective evidence, the documents which were actually sent, the Articles of Association of the companies, what the accused actually said himself in telephone intercepts, that you will conclude that Mr Borgas was in fact telling the truth in this Court when he said he lied in the Federal Court and that he lied in the Federal Court as a result of the accused encouraging him to give false or misleading evidence about these matters in the Federal Court proceedings."

[21]

The defence closing address

The appellant's counsel at the second trial, Mr Smith SC, also emphasised the importance of the appellant's belief and told the jury in closing address, "when you get down to the nitty-gritty what we're really concerned with is the personal belief of Mr Gould."

[22]

The directions sought

The argument on proposed directions took place in the absence of the jury at appropriate junctures throughout addresses as well as after the close of addresses before the summing up.
Before the Crown address, the appellant's trial counsel sought a direction in the summing up that the jury would have to accept Mr Borgas's evidence beyond reasonable doubt before it could convict on the sole count. As referred to above, such a direction had also been sought (and refused) at the first trial. In this trial this request was referred to as a Murray direction, so named because it derives from R v Murray (1987) 11 NSWLR 12 where Lee J said at 19E: "In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable."
On 15 November 2019 the appellant's trial counsel set out the directions sought in writing (MFI #31). He pressed the appellant's request for a Murray direction: "As indicated in open Court the defence submits that a direction requiring the jury to be satisfied of his evidence beyond reasonable doubt, before a verdict of guilty could be returned, should be given. The Crown opposes this direction and the argument has been left in abeyance."
Also in MFI #31, the appellant's trial counsel contended that the same direction under s 165 of the Evidence Act as had been given by Judge Norrish in the first trial ought be given and said: "A section 165(1)(d) warning would be given comprising the mandatory requirements set out in section 165(2) and emphasising that the warning is given in the 'context of the experience of the Courts'. The direction that was given in the last trial is attached to this document. Further to it: - The direction should incorporate a specific part that explains that should the witness not comply with his undertaking he is at risk of it being withdrawn and prosecuted for serious offences. - The Bench book direction at [4-385] may be of assistance generally in this area and has also been attached to this document."
On 18 November 2019, the Crown responded in writing to MFI #31. It agreed that the direction under s 165 of the Evidence Act should follow the script in the Criminal Trial Courts Bench Book (the Bench Book), including as to Mr Borgas's "motive to lie" (as set out in the Bench Book at [3-625] at [1]-[2]).

[23]

The summing up

The trial judge provided the jury with a document which set out the elements of the offence (the elements document), which had been agreed between the parties in advance of the summing up. It relevantly set out the charge and the particulars relied on (set out above) and continued: "The elements of the offence are as follows: 1. the Accused attempted to pervert the course of justice in relation to a judicial power; 2. the Accused intended to pervert the course of justice in relation to a judicial power; and 3. the judicial power is the judicial power of the Commonwealth. DEFINITIONS: A. To attempt to do something, one must intentionally do an act or acts, which is, or are, not merely preparatory towards the commission of a particular objective. A person can commit this offence even if it is impossible to commit the offence or the actual offence was committed. In this context, conduct will amount to attempt if the act has the tendency to pervert the course of justice. B. Intention is concerned with the belief of the Accused as to the existence of a particular circumstance. A person intends to do something if he or she means to bring about a particular outcome. C. The purpose of the acts or conduct constituting the offence must be intended to pervert, or deflect, the administration of public justice. That is, intended to divert the Federal Court from the proper determination of the issues required to be considered by it and having the tendency to do so. Here it is alleged that the Accused intended by his conduct to prevent the Federal Court from having truthful evidence from Mr Borgas. D. The relevant conduct must be established to be directed at the determination of issues by a court exercising jurisdiction in relation to matters concerned with the law of the Commonwealth or in the course of proceedings in a federal court."
The trial judge summarised the Crown case substantially in accordance with the draft provided by the Crown (to which the appellant's trial counsel took no exception) and said: "25 I will, however, give you a summary of their respective cases and this is a summary which they have agreed upon. That is, separately have agreed upon as being a general statement as to what are their respective cases. 26 The Crown, first of all, submitted that you would be satisfied beyond reasonable doubt of particulars 1 through 5 and you are familiar with those. In respect of particulars 1 through 4, the Crown submitted that you would be satisfied the accused was involved in preparing the Q and A documents, provided Mr Borgas with the Q and A documents, practised his answers in Skype calls, encouraged Mr Borgas to learn the answers in the Q and A documents and gave advice on how to answer questions in the Federal Court proceedings. The Crown submitted that you would be satisfied that through that process the accused encouraged Mr Borgas to give certain evidence in the Federal Court as set out in the particulars 1 through 4 of the elements document. 27 The Crown relies upon Exhibit F, that is, the Skype recording and you will receive that in the form of a disc which you will have the facility to play in the jury room. Exhibit G, again, that is a disc of telephone intercepts which you will have access to play it in the jury room and Exhibit L which were the transcripts of the telephone intercepts formally known as MFI 11 now known as Exhibit L. … 29. … I have just said the Crown relied upon Exhibit F, that is, a Skye recording, Exhibit G, Exhibit L, the telephone intercepts, the Q and A documents themselves, as well as the evidence of Mr Borgas. The Crown further submitted that you will be satisfied that the evidence that shows the accused encouraged Mr Borgas to give evidence that was false or misleading to the accused's knowledge. The Crown took you through the documents in Exhibit C including the transaction documents as well as Exhibit A, that are the Agreed Facts. Exhibit B is the s 50 summary in relation to the companies. You will recall there were two s 50 summaries, one was in relation to the companies, in fact, there were three, the others are in relation to minutes of meetings, that is Exhibit D and the third was in relation to a summary of the telephone warrants (Exhibit K). 30 But just returning, the Crown took you through the documents in Exhibit C including the transaction documents and you will recall that the Crown referred to the various transactions in the course of her address as well as Exhibit E the agreed facts, Exhibit B the s 50 summary, Exhibit D the summary again in relation to the minutes of meeting and Exhibits G and L being, the telephone intercepts. The Crown also relies upon the evidence given by Mr Borgas in this Court. 31 In respect of particular 5, that is, the inducement, the Crown submitted that you would accept Mr Borgas's evidence that the accused said to him, 'You say what we want you to say and you will be looked after.'"

[24]

Ground 2(a): alleged corollary to the direction regarding particular (5)

[25]

The substance of the amended ground 2(a)

It was common ground that, as set out above, Mr Smith had sought a direction that, before the jury could convict the appellant, it would have to be satisfied beyond reasonable doubt of the evidence of Mr Borgas as to at least one of the particulars. Accordingly, rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (rule 4.15) does not apply to the first part of ground 2(a). However, it does apply to the second part of ground 2(a), which was added in the course of the oral hearing, which is highlighted above at [37].
Mr Dhanji submitted that the effect of [77] of the summing up was to direct the jury about two matters: 1. as a consequence of there being no documentary evidence in support of particular (5), it was necessary for the jury to be satisfied beyond reasonable doubt of Mr Borgas's evidence as to particular (5), before it could be satisfied of the appellant's guilt on the basis of particular (5) (the particular (5) direction); and 2. there was sufficient evidence, apart from the evidence of Mr Borgas, to prove particulars (1), (2), (3) and (4) (the corollary).
The particular (5) direction was accepted to be correct. Ground 2(a) depended on whether the corollary, which was accepted to be, at best, implicit, arose from the particular (5) direction. Mr Dhanji accepted that if the corollary did not arise, ground 2(a) must fail.
Mr Dhanji submitted: "His Honour's directions clearly permitted the jury to find the offence proved based upon one of particulars 1 through to 4 without being satisfied as to the truthfulness and reliability of Borgas' evidence. The trial judge made it clear in a manner urged upon him by the Crown that a guilty verdict could still properly be returned, relying on any one of particulars 1 through 4 in the absence of reliance on Borgas."
Mr Dhanji submitted that because the jury could not have been satisfied of particulars (1), (2), (3) or (4) based on the documentary evidence alone (a proposition of which he contended that this Court would need to be satisfied by examining the documentary evidence for itself), the conviction must be set aside as the jury had been fundamentally misled as to the capacity of the evidence to prove these particulars. He made detailed written submissions in which he sought to highlight the importance to the Crown case of Mr Borgas's belief in the falsity of the evidence he gave in the Federal Court, which he contended could not be proved unless Mr Borgas's evidence was accepted. He submitted that the corollary was misleading because, even if other matters could be proved through the documents, Mr Borgas's belief in the falsity of his evidence could not be. He submitted that "appellations like a Murray direction and the like are quite beside the point."

[26]

When a Murray direction will be appropriate

For completeness I propose to address the question of a Murray direction since it appears to have underpinned ground 2(a), although not ultimately put on that basis following the amendment.
Mr Borgas's evidence was not, in respect of particulars (1) to (4), uncorroborated. Accordingly, there was no proper basis for a Murray direction and no need for the jury to consider either his evidence or the documentary evidence in isolation. The jury was obliged to consider the evidence as a whole, including Mr Borgas's evidence and the documentary evidence, when deliberating on whether any of particulars (1) to (4) had been made out.
A Murray direction, as explained by Simpson J in Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544 (Ewen) at [104] (Basten JA and Davies J agreeing), "refer[s] to a direction that, in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care." The Crown case in respect of particulars (1) to (4) did not depend solely on Mr Borgas's evidence because it was also supported by substantial documentary evidence. Thus, the metaphor of strands in a cable (derived from Wigmore on Evidence, vol 9 (Chadbourn Rev. 1981) at pp 412-414, par 2497, approved in Shepherd v The Queen at 579 (Dawson, Toohey and Gaudron JJ agreeing)) which is commonly used when describing a circumstantial case is apt.
The present case illustrates the importance of appreciating the rationale for a Murray direction, which derives from fundamental principles and can be reduced to the following propositions: 1. it is for the Crown to prove each element of an offence beyond reasonable doubt; 2. the jury is obliged to consider all of the evidence in determining whether each element has been proved beyond reasonable doubt; 3. if the commission of an offence (or at least one element of it) depends solely on the evidence of a single witness, the jury must be satisfied of the evidence of that witness beyond reasonable doubt as to the relevant element or elements (since there is no other evidence to weigh in the balance); 4. if there is evidence beyond that of the single witness which tends to prove the particular element, there is no basis for a Murray direction since the jury could be satisfied of the particular element beyond reasonable doubt even though, without more, they would not be prepared to accept the evidence of the witness as to that matter beyond reasonable doubt; and 5. the evidence beyond that of a single witness can derive either from the oral testimony of other witnesses; or from documents; or other corroboration (such as DNA testing, telephone intercepts, physical evidence etc).

[27]

Conclusion on ground 2(a)

For these reasons, I reject Mr Dhanji's analysis that, if the jury was satisfied of the whole of the evidence beyond reasonable doubt, it followed that the jury must have been satisfied of Mr Borgas's evidence beyond reasonable doubt. This is a non sequitur. If the element to be proved was x and Mr Borgas gave evidence of x, but there was substantial corroborative evidence of x, a finding of guilt based on x (from which it could be inferred that the jury was satisfied of x beyond reasonable doubt) provides no information about what weight was given by each juror to Mr Borgas's evidence of x.
As Mr Dhanji accepted that the fate of ground 2(a) depended on whether this Court accepted the corollary of what his Honour said in [77] of the summing up, I consider that leave under rule 4.15 is required. I would refuse leave under rule 4.15 as the point was not taken. Further, for the reasons given above, I do not regard the corollary as reasonably arising from what his Honour said. There is therefore no need for this Court to determine whether it would have been open to convict the appellant of any of particulars (1), (2), (3) or (4) based on the documentary evidence alone.

[28]

Ground 2(b): alleged inadequacy of the warning with respect to Mr Borgas's evidence

I have set out in detail the narrative of the provenance of the warnings given by the trial judge at the second trial, which derive from the direction sought by Mr Dhanji, when he was trial counsel for the appellant at the first trial. As is evident from the narrative, his Honour gave the direction in the form which was sought by the appellant. Norrish QC DCJ in the first trial was provided with, and accepted, assistance from Mr Dhanji in formulating the warning. In the second trial, Wilson SC DCJ also conferred extensively with counsel before commencing the summing up and provided them with a draft for their comment. There was, accordingly, an exceptional degree of consultation in the formulation of the warnings to be given by Wilson SC DCJ to the jury about the evidence of Mr Borgas.
The additional matter which Mr Dhanji contended ought to have been appreciated (that by saying that Mr Borgas could be said to have been involved in the commission of the alleged offence, the trial judge was implying that there had been an offence and that the appellant was guilty) was plainly not appreciated at the trial. While Mr Dhanji resisted the description that ground 2(b) was an "armchair appeal", he accepted that it was "an appeal point that arises as a result of distance from the fray". He contended that the warning in the terms it was given was unfair to the appellant because the witness (Mr Borgas) was, in effect, admitting to a crime and the appellant was denying that either of them committed a crime (since it was the appellant's case that Mr Borgas had been lawfully engaged as a company director for each of B, C and D, in circumstances where the appellant was one of his expert advisers). I fail to see why the situation in the present case did not warrant the usual warning under s 165 of the Evidence Act given in respect of the evidence of alleged accomplices.
Nor do I consider there to have been any oversight on the part of Mr Dhanji at the first trial, or Mr Smith at the second trial, or indeed of Judge Wilson or the Crown. Rather, it reflected their collective appreciation that the warnings given by Judge Norrish in the first trial and Judge Wilson in the second trial in the form which they were given were appropriate and necessary to ensure that the appellant's trial was fair. There was no implication that the appellant was guilty, since the warning was cast in terms of an alleged crime, as was the case.

[29]

Ground 2(c): alleged failure to direct the jury about Mr Borgas's credibility

Mr Dhanji accepted that ground 2(c) depended largely, although not wholly, on ground 2(b) being made out. To the extent to which there is anything left of ground 2(c) once ground 2(b) has not been made out, it can be addressed briefly.
The Crown case was put on the basis that Mr Borgas had lied on oath in the Federal Court. As the passages extracted above showed, the Crown made it very clear to the members of the jury that they had to choose between inconsistent statements made by Mr Borgas because he had said things that were mutually inconsistent. They were told of his immunity from prosecution and the fact that there would be repercussions if he failed to give evidence in support of the Crown case.
It is well established that the trial judge is not to give the jury directions about matters relating to credibility except where the experience of the Court is thought to be superior to that of the jury: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [52] (French CJ, Bell, Keane and Nettle JJ). Mr Dhanji accepted that "the particular issues in this case: a demonstrated willingness to lie on oath; the provision of inconsistent accounts; and the existence of a powerful motive to lie, do not necessarily fit into this category". However, he submitted that because the appellant's case was that Mr Borgas had not been engaged in illegal activity, the warnings under s 165 of the Evidence Act (which are the subject of ground 2(b)) gave rise to a particular risk which could only be ameliorated by the giving of a further direction regarding Mr Borgas's credibility. Mr Dhanji was also critical of the trial judge's summary of the appellant's case and noted that there was no reference there to the reasons for caution in relying on Mr Borgas. I regard this criticism as unwarranted. Judge Wilson summarised the parties' cases in the terms each had sought (in versions provided to his Honour in advance) and to which the other had made no objection.
As this Court said in RGM v R [2012] NSWCCA 89 at [97] (Fullerton J, McClellan CJ at CL and Johnson J agreeing): "it is important that a trial judge refrain from suggesting an approach to the assessment of a [witness's] evidence in such a way that it has the appearance of a direction of law." Exceptions (where the experience of the Court is thought to be superior) are to be found in the matters referred to in s 165 of the Evidence Act. Jurors are also required to be told that they can accept part of a witness's evidence and reject other parts. The matters raised by the appellant in ground 2(c) are quintessentially matters which were within the province of the jury and required no direction. Nor was any such direction sought.

[30]

The appellant's application for leave to appeal against sentence and the Crown appeal against sentence

The appellant seeks leave to appeal against his sentence on the following grounds: "1. The sentencing judge erred in sentencing the applicant on the basis that all four of particulars 1 to 4 had been proved in circumstances where the jury had not indicated which particulars they found to have been proven beyond reasonable doubt. 2. The sentencing judge erred in failing to properly take into account the significance of the delay in the proceedings."
By notice of appeal dated 23 December 2020, the Crown appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) on the ground that the sentence was manifestly inadequate. An amended notice of appeal, which was filed on 28 February 2021, expressed the ground as follows: "ON THE GROUND that the sentence imposed was manifestly inadequate, in particular, but not only, because the sentencing judge: a. failed to adequately reflect the seriousness of the offending in the head sentence; b. failed to adequately reflect the seriousness of the offending in the non-parole period imposed; and c. failed to have appropriate regard to the principles of general and specific deterrence and denunciation."
Before addressing the appellant's application for leave, and Crown appeal, it is convenient to summarise the proceedings on sentence and the sentencing judgment.

[31]

The hearing on 30 March 2020

The sentence hearing began on 30 March 2020 before Judge Wilson (the sentencing judge).
The Crown relied on written submissions and proposed "agreed" facts which were footnoted with evidentiary references alleged to support them. The Crown also read an affidavit of Jeremy Tucker, the director of NSW Corrective Services Strategy and Policy, who was said to be authorised by the Commissioner of Corrective Services NSW to swear the affidavit. Mr Tucker annexed to that affidavit a copy of the response by Corrective Services NSW to the COVID-19 pandemic.
The Crown also tendered a sentencing assessment report in which it was noted that the appellant had no previous criminal history and that he was "adamant of his innocence" and that "his advice to the witness was 'taken out of context'". The author of the report noted that the appellant expressed a willingness to comply with community service work and was compliant throughout the assessment. It was also noted that the appellant told the assessor that his employees had continued to manage his businesses and that, upon his release, he would recommence work as a financial adviser. The author assessed the appellant to be at a low risk of re-offending and as suitable to undertake community service work.
The Crown tendered a letter dated 10 January 2019 from the Tax Practitioners Board (the Board) which notified the appellant that the Board, on 13 December 2018, decided that, as he no longer met the requirements for registration that he be a fit and proper person, his registration as a tax agent was terminated from 7 February 2019 and his application for renewal of his registration was rejected. In the letter, the Board detailed its reliance on the findings of Perram J in Hua Wang Bank Berhad v Federal Commissioner of Taxation, as follows: "The Board particularly noted its concern that: a. you were the subject of adverse commentary in the Federal Court judgment in Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392. The decision of the Honourable Justice Perram (Perram J) was subsequently affirmed by the Full Federal Court and High Court on appeal. b. The Federal Court found that you owned Hua Wang Bank Berhad and had exercised central management and control of the entities from Sydney, and made damning comments regarding your character and conduct. c. Perram J noted that 'the conduct revealed in this case is disgraceful' and directed the Registrar of the Federal Court to forward a copy of the Federal Court decision to the Commonwealth Director of Public Prosecutions, the Australian Securities and Investments Commission and the Australian Federal Police. d. The High Court agreed with Perram J's conclusion that all deliberative decisions of the taxpayers were made by you and noted (at paragraphs 62 to 64 of its decision) that 'Gould alone 'controlled [Hua Wang Bank Berhad's] every move" and (at paragraph 27 of its decision) that "[t]he evidence that Gould ran every aspect of Chemical Trustee's business was overwhelming, notwithstanding that Gould had gone to great lengths to conceal that fact ... Gould owned HWB. His elaborate but ultimately unsuccessful attempts to make it appear otherwise suggested the presence of dishonesty". e. Perram J detailed dishonest behaviour by you that is fundamentally at odds with a person being of good fame, integrity and character throughout the Federal Court judgment …"

[32]

The grant of bail pending sentence

The sentence hearing on 30 March 2020 was required to be adjourned, part-heard, to 7 April 2020 because of technical difficulties in conducting the matter remotely (as was required due to COVID-19). The proceedings did not go ahead on 7 April 2020. On 8 April 2020, the sentencing judge granted bail to the appellant on conditions which required him to reside and remain at a specified address, except when reporting to police (which he was required to do daily) or obtaining essential or urgent medical treatment. The order was made under s 11 of the Crimes (Sentencing Procedure) Act 1990 (NSW) that the sentence be deferred to a date to be fixed in October 2020. On 2 November 2020, the order under s 11 was revoked but bail was continued on the same conditions pending the imposition of sentence on 17 December 2020.

[33]

The hearing on 17 December 2020

At the resumed sentence hearing on 17 December 2020, further material was admitted into evidence. The Crown tendered a further sentencing assessment report and an affidavit of Mr Tucker as to COVID-19 in prisons, and the appellant tendered a report of Dr Holliday, a general practitioner, dated 9 November 2020, as to his present medical conditions. Following further submissions, his Honour delivered his sentencing judgment and imposed the sentence referred to above.

[34]

The findings of fact relating to the particulars

His Honour's findings about the background to the offence accord with the narrative set out above (as to B, C and D and the Federal Court proceedings) and, accordingly, does not need to be repeated here. The sentencing judge relevantly found: "52 The Question and Answer Documents included information that Mr Borgas did not otherwise know and that was false or misleading. The Offender's purpose in sending Mr Borgas the Question and Answer Documents was to instruct Mr Borgas in respect of the evidence that he was to give in the Federal Court proceedings and to encourage Mr Borgas to learn the answers contained in the Question and Answer Document. The Offender referred at times to Mr Borgas' evidence as 'the exam' and the Question and Answer Document as Mr Borgas' 'crib notes'. 53 To assist Mr Borgas in learning the answers contained in the Question and Answer Documents in preparation for giving evidence, the Offender also organised and conducted direct instruction sessions with Mr Borgas on Skype with the intent to ensure Mr Borgas had sufficiently absorbed the answers set out in the most recent version of the Question and Answer Document and that Mr Borgas was adequately rehearsed in articulating and explaining those answers. The Offender was aware that it was essential to the Taxpayers' success in the Federal Court proceedings that the testimony of Mr Borgas be accepted. That is, that Mr Borgas, and not the Offender, controlled Chemical Trustee, Derrin Brothers and Bywater Investments."
His Honour found, at [61], that it was "apparent that Mr Gould was indeed coaching Mr Borgas on how to answer questions". His Honour addressed the evidence in support of each particular and found that each of particulars (1) to (4) had been made out beyond reasonable doubt. As to particular (5), his Honour said: "104 Proof of Particular 5 beyond reasonable doubt requires an acceptance of the evidence of Mr Borgas. It is otherwise supported only by a statement made by the Offender to the effect that 'in the end it will be worth your while'. In my opinion, the statement by the Offender is too vague to provide the strong corroboration required of the evidence provided by Mr Borgas. Given the absence of documentary or other evidence supporting Particular 5, I find that it was not proved beyond reasonable doubt. 105 Rejection of Particular 5 is not in any way inconsistent with the jury's verdict given my acceptance of Particulars 1-4."

[35]

The determination of the Chiro argument

His Honour's reasons for distinguishing Chiro, were as follows: "117 In my opinion, the High Court did not intend the approach in Chiro to replace the conventional approach to fact finding referred to in Cheung and Isaacs, save for a case of an offence under s50(1) of the CLCA, or any like provision (such as s66EA of the Crimes Act 1900 (NSW): persistent sexual abuse of a child). The present matter can be distinguished from Chiro on at least the following grounds: (a) in Chiro, there were clear and distinct acts of offending, each giving rise to the potential for separate charges; (b) Chiro related to a course of conduct over a period of time with multiple acts of significantly varying severity; (c) the actus reus in respect of each of the matters relied upon in Chiro [was] different; and (d) in the present case, the actus reus in relation to particulars 1-4 [is] the same. That is that the Offender encouraged Mr Borgas to assert, or confirm, in his testimony facts which were false. 118 If I am mistaken as to my interpretation and application of Chiro, then I consider the objective seriousness of each of Particulars 1-4 to be so closely aligned as to not permit any rational distinction to be made between them. Unlike Chiro, there is no hierarchy of the seriousness of offending."

[36]

Assessment of objective seriousness

The sentencing judge accepted the Crown's submission that the offending was "objectively very serious". His Honour set out the Crown's submissions as to the factors which led to this conclusion: 1. the extended period of time of the offending (six months), as demonstrated by the number of iterations of the Q & A document; the audio recording of the Skype call which "resembled a class between a tutor and his pupil"; the appellant's use of Mr Borgas as a "puppet"; the appellant's "perfect insight" into what he was asking Mr Borgas to do; the tutorials which the appellant conducted after Mr Borgas arrived in Australia on 4 October 2013; and the telephone contact between them in Australia which had been intercepted and recorded; 2. the sophistication of the offending; and 3. the steps taken by the appellant to avoid detection (by encouraging Mr Borgas not to reveal the coaching and to be careful about what he told Ms Seiden who was said to be scrupulous about ethical matters).
His Honour accepted that the present case was a serious example of an offence which struck at the very heart of the administration of justice. He found that the appellant stood to benefit from avoiding the tax which was the subject of the ATO assessments challenged by B, C and D in the Federal Court. Honour concluded that: "[T]he objective seriousness of the offending was well above the mid-range for offending of this type, if not at the high range for offending of this type. The Offender demonstrated a shamefully blatant disregard for both the Court and, in doing so, the judicial power of the Commonwealth."

[37]

Relevant factors

His Honour turned to the various factors in s 16A of the Crimes Act. He declined to find that the offence formed part of a course of conduct. The sentencing judge rejected Mr Smith's submission that the absence of loss or damage reduced the objective seriousness. His Honour found that justice was achieved (Perram J's rejection of Mr Borgas's evidence) "notwithstanding the dishonest attempts by the [appellant] to deceive the Court so as to subvert the Court's processes." His Honour regarded the statement by the appellant that he was innocent and that "his advice to the witness was 'taken out of context'" as demonstrating that he was "as delusional as he is dishonest".
His Honour found general deterrence to be of "paramount significance" but also found that there was also a need for specific deterrence, "moderated to some degree by the [appellant's] changed circumstances". In relation to good character his Honour found: "Not only is he a person without a criminal record, but a demonstrated habit of contributing profitably to the community. He is entitled [to] a finding of prior good character and any leniency which may flow from that finding."
The sentencing judge referred to Dr Seidler's report and declined to find that the factors or antecedents referred to mitigated the sentence. His Honour concluded: "Absent evidence from the [appellant], I decline to find that he suffered personality vulnerabilities. I also decline to find that he was prone to poor decision making and poor boundaries professionally. The evidence establishes, with clarity, that the Offender enjoyed great professional success."
His Honour noted that the appellant was born in 1948 and was, at the time of sentencing, 72 years old. The sentencing judge accepted Mr Smith's submissions that, having regard to the appellant's age, each year of a sentence may represent a substantial portion of his remaining life and there is hardship associated with the knowledge that a lengthy sentence will destroy any reasonable expectation of a useful life after release.
As to the appellant's physical condition, his Honour found that, without any evidence to the contrary, there was no reason to find that the appellant's need for medical attention could not be appropriately managed by Justice Health. The sentencing judge found the appellant's prospects of rehabilitation to be "guarded". His Honour took into account that the appellant was in a form of protective custody known as the "Special Management Area Placement" (SMAP), having been moved there at his own request and not as a result of any identified risk. His Honour also took into account the risk of contracting COVID-19 although found that the risk was ameliorated by the relative isolation afforded by the SMAP.

[38]

The appellant's application for leave to appeal against sentence

[39]

Ground 1: alleged error in sentencing on the basis that particulars (1)-(4) had been proved

This ground depends on whether Chiro applies to the present case or whether the sentencing judge was entitled to sentence in accordance with Cheung.
The submissions which were made to the sentencing judge were repeated in this Court. In substance, the appellant submitted that Chiro applies to the present case because of the need for an extended unanimity direction.
The Crown submitted that Chiro was confined to the particular offence under consideration in that case (an omnibus offence which comprised a number of constituent offences) and did not apply to an offence such as the present. The Crown submitted that, unlike in Chiro, the particulars could not have been charged as four separate offences, since, had that course been taken, the charges would have been liable to be struck out, as there was a single offence constituted by one activity (attempting to pervert the course of justice in the Federal Court by encouraging Mr Borgas to give evidence which was false or misleading), albeit one with several aspects by reason of the different topics about which the evidence was concerned.
Procedural fairness required the Crown to particularise the aspects of the evidence relied on. The Crown accepted, at trial and in this Court, that an extended unanimity direction was required. It is neither necessary nor appropriate for this Court to express a concluded view on this question, given the absence of any argument on the question, in light of the concession.
The determination of whether the principles in Chiro apply to the present case requires an analysis of the relevant authorities, including Cheung and Chiro.

[40]

Isaacs

The starting point in addressing the question of fact-finding for the purposes of sentencing is R v Isaacs (1997) 41 NSWLR 374 (Isaacs) where this Court (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ), at 379-380, overturned authorities which had sanctioned the questioning of juries as to the basis of their verdict. The appellant in Isaacs had submitted that the sentencing judge was in error in sentencing him on the basis of manslaughter resulting from provocation, rather than the alternative of manslaughter involving unlawful and dangerous act, and that the sentencing judge ought to have asked the jury to identify the basis, or bases, of its verdict was.
This Court rejected the appellant's argument and observed that it was "ordinarily better" not to ask a jury the basis for its verdict. Their Honours said, at 378, following Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29, that it was for the judge to find the facts which are material to the exercise of the sentencing discretion, so long as the facts were consistent with the jury's verdict. The Court also said, at 378, that there was no general requirement that a sentencing judge must sentence the offender on the basis of the view of the facts which is most favourable to the offender. The judge was, however, required to be satisfied of those matters which were to be taken into account adversely to the offender, beyond reasonable doubt. The Court noted that these principles applied equally to manslaughter and other offences. The Court deprecated the practice (which had developed in relation to manslaughter) of questioning the jury as to the basis of its verdict.
The Court, at 379-380, listed seven reasons why questioning the jury would usually be inappropriate: "In our view the following considerations should lead trial judges to refrain from asking a jury the basis of a verdict of manslaughter, save in exceptional cases. First, to inform the jury, in the course of a summing-up, that they will later be invited to answer a question, or questions, as to the basis of the verdict, may distract them from their task of seeking unanimity on a general verdict, and provoke unnecessary confusion and disagreement as to the basis of the verdict. Secondly, the jury's response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed. Thirdly, there may be various possible views of the evidence in a case; different jurors may adopt different views and yet, consistently with their directions, reach a common verdict. To invite them to refine their verdict may be productive of mischief. Fourthly, there is a substantial risk that the jury will be invited to make a decision upon which they have not been properly addressed by counsel. The present case provides a good example. Trial counsel never addressed the jury on provocation. Rarely would defence counsel's address to a jury be expressed in terms appropriate to a plea in mitigation. Fifthly, where there are two or more accused the jury might choose to answer the question with respect to one or more and not with respect to another or others. This would be invidious. Sixthly, the judge may be embarrassed if he or she does not agree with the jury's answer to the question. Seventhly, where two or more partial defences are advanced, if the jury were to come to a conclusion favourable to an accused on the first defence they considered, they might not consider the other or others; if that occurred, an answer to the question might convey a false impression of having considered and rejected the other or others. Accordingly, we do not accept the submission that Newman J should have questioned the jury as to the basis upon which they found manslaughter."

[41]

Cheung

The appellant in Cheung was charged with being knowingly concerned in the importation of almost 50kg of heroin. An accomplice gave evidence that the appellant had been involved in the planning, implementation and importation over a period of about nine months. However, if that evidence (and other evidence) had not been accepted, the appellant's involvement would have been significantly more limited. The judge sentenced the appellant on the basis of the evidence of greater involvement given by the accomplice. The appellant appealed on the basis that the judge was obliged to sentence on the basis of a view of the evidence which was most favourable to him.
When addressing the duties of the sentencing judge, the plurality (Gleeson CJ, Gummow and Hayne JJ) said at [5]: "The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace."

[42]

KBT v The Queen

In KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54 (KBT), the High Court considered s 229B of the Criminal Code (Qld), which is not dissimilar from s 50(1) of the CLC Act (set out below), which was considered in Chiro. Section 229B relevantly provided: "(1) Any adult who maintains an unlawful relationship of a sexual nature with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 7 years. (1A) A person shall not be convicted of the offence defined in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, other than an offence defined in section 210(1)(e) and (f), on 3 or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions." [Emphasis added.]
The offences defined in s 210(1)(e) and (f) of the Criminal Code (Qld) related to the exposure of a child aged under 16 years to indecent material and the taking of indecent photographs or films of a child under 16 years.
The appellant, KBT, was charged with an offence under s 229B(1) on the basis of various incidents involving the complainant, M, which fell into the following six categories: 1. M rode as a pillion passenger on KBT's motorcycle, in the course of which KBT stroked her breasts and pubic area and put his hands inside her pants; 2. KBT would have an afternoon rest with M, during which he would stroke her pubic area under her clothing, and, on occasions, penetrate her vagina with his finger; 3. KBT would grab M's bottom or breast when they were fruit-picking; 4. KBT would put M on his lap and stroke her breasts and pubic area under her clothing and, on occasions, penetrate her vagina with his finger; 5. KBT would come into M's bedroom and perform the acts referred to above; and 6. KBT would get M to sit on his lap while watching television and would perform the acts referred to above under a blanket while KBT's wife was present.
The High Court held that a person could not be convicted under s 229B(1) of the Criminal Code (Qld) unless the jury was unanimous as to the commission of the same three or more acts constituting offences of a sexual nature.

[43]

R v D

In R v D (1997) 69 SASR 413, the South Australian Court of Criminal Appeal allowed an appeal against the sentence imposed on D who had pleaded guilty to the offence of persistent sexual abuse of a child contrary to s 74(1) of the CLC Act (the statutory predecessor to s 50(1), which was considered in Chiro).
Section 74 of the CLC Act then provided: "(1) A person may be charged with and convicted of the offence of persistent sexual abuse of a child. (2) Persistent sexual abuse of a child consists of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions (whether the offence is of the same nature on each occasion or differs from occasion to occasion). (3) A person does not however commit the offence of persistent sexual abuse of a child unless the occasions on which a sexual offence is committed against the child fall on at least three days. (4) A charge of persistent sexual abuse of a child - (a) must specify with reasonable particularity when the course of conduct alleged against the defendant began and when it ended; and (b) must describe the general nature of the conduct alleged against the defendant and the nature of the sexual offences alleged to have been committed in the course of that conduct, but the charge need not state the dates on which the sexual offences were committed, the order in which the offences were committed, or differentiate the circumstances of commission of each offence. (5) Before a jury returns a verdict that a defendant is guilty of persistent sexual abuse of a child - (a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least three separate incidents, falling on separate days, between the time when the course of conduct is alleged to have begun and when it is alleged to have ended in which the defendant committed a sexual offence against the child; and (b) the jury must be agreed on the material facts of three such incidents in which the defendant committed a sexual offence of a nature described in the charge (although they need not be agreed about the dates of the incidents, or the order in which they occurred). (6) The judge must warn a jury, before it retires to consider its verdict on a charge of persistent sexual abuse of a child, of the requirements of subsection (5). (7) A person convicted of persistent sexual abuse of a child is liable to a term of imprisonment proportionate to the seriousness of the offender's conduct which may, in the most serious of cases, be imprisonment for life. (8) A charge of persistent sexual abuse of a child subsumes all sexual offences committed by the same person against the same child during the period of the alleged sexual abuse, and hence a person cannot be simultaneously charged (either in the same or in different instruments of charge) with persistent sexual abuse of a child and a sexual offence alleged to have been committed against the same child during the period of the alleged persistent sexual abuse. (9) A person who has been tried and convicted or acquitted on a charge of persistent sexual abuse of a child may not be charged with a sexual offence against the same child alleged to have been committed against the same child during the period over which the defendant was alleged to have committed persistent sexual abuse of the child. (10) A prosecution on behalf of the Crown for persistent sexual abuse of a child cannot be commenced without the consent of the Director of Public Prosecutions. (11) In this section - 'child' means a person under the age of sixteen years; 'sexual offence' means an offence against section 48, 49, 56, 58, 58A or 72, or an attempt to commit, or an assault with intent to commit, any of those offences."

[44]

Chiro

Chiro (C), a former high school teacher, was charged with one count of persistent sexual exploitation of a child under the prescribed age under s 50(1) of the CLC Act. Because of the importance of the wording of the provision to the decision, it is necessary to address it in some detail. Section 50 provided (at the relevant time): "50 - Persistent sexual exploitation of a child (1) An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence. Maximum penalty: Imprisonment for life. (2) For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence. … (4) Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section: (a) subject to this subsection, the information must allege with sufficient particularity - (i) the period during which the acts of sexual exploitation allegedly occurred; and (ii) the alleged conduct comprising the acts of sexual exploitation; (b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not - (i) allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or (ii) identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred; (c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person - (i) in relation to the child who is allegedly the subject of the offence against this section; and (ii) during the period during which the person is alleged to have committed the offence against this section, must be charged in the alternative. (5) A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child. (6) This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section. …"

[45]

Hamra v The Queen

Hamra v The Queen (2017) 260 CLR 479; [2017] HCA 38 (Hamra) was heard and decided at the same time as Chiro. In Hamra, there had been a trial by judge alone. The trial judge had found that it was not possible, from the generalised evidence of the complainant, to identify two or more acts of sexual exploitation by the accused (H). Accordingly, at the close of the Crown case, the trial judge directed a verdict of acquittal on the basis that there was no case to answer. The South Australian Court of Criminal Appeal allowed the appeal. The High Court unanimously (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) dismissed H's appeal. It held that s 50(4) of the CLC Act did not require the occasions to be particularised other than as to the period and the conduct. The complainant's evidence, taken at its highest, demonstrated that there was a case to answer in respect of the alleged acts of sexual exploitation during the period when the complainant was under 17 years of age. The Court accepted that, while a lack of specificity might make it difficult for a jury to agree on two or more of the same acts, there was a possibility that the jury might agree that all of the alleged acts occurred, which would be sufficient for a conviction. Thus, there was a case to answer.

[46]

DL v The Queen

In DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, the High Court considered whether a conviction following a trial by judge alone could stand when the trial judge's reasons failed to identify two or more acts of sexual exploitation upon which the conviction was based. The majority construed the trial judge's reasons as amounting to an acceptance of the complainant's evidence and therefore a finding that all of the alleged acts had been committed. The finding of guilt was therefore supported on the basis postulated by the High Court in Hamra.

[47]

Subsequent consideration of Chiro

Chiro was decided on 13 September 2017. It is noteworthy that it has been cited almost exclusively in the context of offences such as s 50(1) of the CLC Act or like provisions. It was referred to in H's application for special leave to appeal (which led to the appeal being heard together with C's appeal). It was also referred to in the special leave application in DL v The Queen (referred to above).
Chiro was cited by the High Court in KMC v Director of Public Prosecutions (2020) 267 CLR 480; [2020] HCA 6 (KMC) where it was noted by the Court (Kiefel CJ, Bell, Gageler, Nettle, Gordon and Edelman JJ) at [9] that, shortly after Chiro was handed down, the South Australian Parliament had purported to amend s 50 of the CLC Act with retrospective effect: s 9 of the Statutes Amendment (Attorney-General's Portfolio No 2) Act 2017 (SA) (the Amending Act). The Full Court of the Supreme Court of South Australia held that s 9 of the Amending Act was invalid as contrary to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 61; [1996] HCA 24: Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128; (2018) 275 A Crim R 400; see, for a helpful discussion of the legislative history of these provisions and the relevant decisions, including Chiro, Marie Shaw SC and Ben Doyle, "The Age of Statutes and its intersection with Fundamental Principles: an Illustration" (2019) 40 Adelaide Law Review 353.
The High Court decided that the trial judge had neither asked the jury in KMC's trial what acts it had found to be proved nor sentenced him on the basis of the most favourable version of the facts (that the two least serious underlying offences had been made out). However, the Court found that s 9 of the Amending Act did not apply in terms because the sentencing judge had not in fact made findings of the underlying offences beyond reasonable doubt (as required by the terms of s 9). Thus, the Court found that s 9(1) of the Amending Act was not engaged. Accordingly, the appeal was allowed and the matter was remitted to the trial judge so that KMC could be sentenced according to law.
Chiro has, so far as my research has indicated, not been cited in other any applications for special leave to appeal to the High Court.
Chiro has been cited by Nettle J, extra-judicially, in a paper entitled, "The Jurisprudence of the High Court of Australia on Sentencing" for the National Judicial College of Australia Conference, "Sentencing: New Challenges". Nettle J summarised the facts and ratio of Chiro and concluded, at page 38: "The application of Chiro to the offence of persistent sexual exploitation has since been abrogated by retrospective legislation. But the principle is of broader application than that."

[48]

The effect of Chiro

What Chiro established is that, for offences such as s 50(1) of the CLC Act, where an omnibus offence depends on the proof of underlying particulars which themselves constitute single offences of different types, with different maximum penalties, the sentencing judge must sentence the offender on the basis of the most favourable version of the facts (that is proof of the least serious underlying offences) unless the jury has identified the particulars (referable to underlying offences) of which it was satisfied beyond reasonable doubt (the Chiro principle). The reasons for this are that the underlying offences constitute the actus reus of the omnibus offence and the offender is to be sentenced by reference to the gravity and maximum penalty of the underlying offences, albeit that the conviction is for the omnibus offence. To do otherwise would risk breaching the De Simoni principle.
What Chiro did not establish (and which did not arise) is that, in all circumstances where an extended unanimity direction is required and the jury has not been asked as to the basis of its verdict, the offender is to be sentenced on the basis of the most favourable view of the facts.
If the appellant's argument in the present case is accepted, it would extend the Chiro principle to all offences where an extended unanimity direction is required, including the following: 1. where there is more than one act relied upon by the Crown as constituting an unlawful and dangerous act for the purposes of manslaughter: R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [77] (Maxwell P, Vincent JA agreeing), approved in Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 at [34] (Kiefel CJ, Bell, Keane and Edelman JJ); 2. where the Crown case on manslaughter has gone to the jury on the basis of gross negligence and unlawful and dangerous act: R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198; 3. where the offence is culpable driving causing death and the factual alternatives are gross negligence or intoxication: R v Beach (1994) 75 A Crim R 447; and 4. where the offence requires the Crown to prove that the financial advantage was obtained by intentional deception, which is said to be constituted by the deliberate non-disclosure of assessable income for a particular year, the jury must be directed that they need to be unanimous as to at least one of the misrepresentations and that it resulted in the obtaining of the financial advantage (by reason of the income not being assessed): Pratten v R [2014] NSWCCA 117 at [53]-[54] (Meagher JA, Fullerton and Hamill JJ).

[49]

Ground 2: alleged failure to take into account delay

The appellant's argument that the sentencing judge had failed to take into account delay was based on the proposition that his Honour had failed to take into account the period of delay from 23 August 2018. Mr Dhanji submitted that it was not sufficient that his Honour had addressed this period under the heading "Commencement date" because it ought to have been under the heading "Delay". He submitted that its absence from the reasons under the appropriate heading, indicated that it had not been taken into account on the question of delay and that therefore there had been a House v The King (1936) 55 CLR 499; [1936] HCA 40 error in the exercise of the sentencing discretion.
The reasons of sentencing judges are to be read fairly as a whole. In Kaddour v R, an application for leave against sentence was based on the proposition that a factor unrelated to objective seriousness of an offence was in the same paragraph as the factors which were germane to the assessment of objective seriousness. The ground was rejected by this Court on the basis that the words used by the sentencing judge had to be read and understood in context: at [10]-[11] (Leeming JA, Fullerton J agreeing) and [24] (myself, Fullerton J agreeing): see also Attwater v R; Maris v R [2021] NSWCCA 17 at [454]-[460] (Bathurst CJ, Davies and Wilson JJ). The question is whether there is error in the discretion, not whether the reasons of the sentencing judge could have been expressed differently.
In the present case, the sentencing judge was plainly alive to the passage of time from 23 August 2018 until the sentence was imposed on 17 December 2020. The three periods set out under the heading of "delay" in the reasons were taken directly from Mr Smith's written submissions. The matters referred to under the heading, "Commencement date" covered the balance of the period. The total delay was considerable, as his Honour found. The Crown accepted that there was no specific reference in his Honour's reasons to the six-month period between the end of the first trial and the decision to proceed with the second trial. I am not persuaded that this concession was properly made since his Honour extracted from Mr Smith's written submissions the three periods which are set out above, the third of which relates to that six-month period.
I discern no error in his Honour's reasons or in the exercise of the discretion. I am not persuaded that anything less than the full period of delay was taken into account by his Honour. The latter period of delay was taken into account generally in the fixing of the sentence as well as specifically in relation to the commencement date. There was no evidence of the effects of delay although the Crown accepted that some stress could be inferred from delay of itself. The sentencing discretion does not miscarry simply because the sentencing judge does not refer to every piece of evidence or every detail, as long as relevant factors were taken into account. The sentencing judge took into account delay. The structure of his Honour's judgment was influenced by the way in which submissions were put on behalf of Mr Gould but the substance of the judgment made it clear that his Honour was cognisant of the total length of delay which was, in any event, apparent from the material before his Honour.

[50]

The Crown appeal against sentence

The Crown submitted that the sentence imposed was manifestly inadequate and that the residual discretion ought not be exercised. The Crown contended that the sentence was so lenient as to be "unreasonable or plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). In substance, the Crown submitted that there was a lack of correspondence between the finding of the sentencing judge and his Honour's assessment of the objective seriousness of the offending (that it was very serious and that, because of its seriousness, there was no comparable case) on the one hand and the sentence imposed on the other.
The Crown catalogued his Honour's findings as to the subjective matters in the respondent's favour (prior good character, age, delay, hardship in prison, extra-curial punishment) and noted that his Honour had indicated qualitatively the weight given to such factors. The Crown also listed the factors that were not in the respondent's favour, such as lack of contrition or remorse and that his health issues could be treated in gaol.
The Crown submitted that, having regard to the relatively few ameliorating matters affecting the respondent's subjective case, the findings about objective seriousness and the need for general and specific deterrence, the sentence was plainly too lenient and indicated that there had been an error of principle. The Crown submitted that the findings were incongruous with the sentence actually imposed.
Mr Dhanji submitted that the factors of delay and age were more than sufficient to ameliorate the objective seriousness of the offending and there was no basis on which the sentence could be regarded as manifestly inadequate in all the circumstances.
I am persuaded that the respondent's conduct, as found by the sentencing judge and as demonstrated by the incontrovertible evidence before this Court, warranted a much more severe sentence than the one imposed. His Honour's assessment of objective seriousness (based in part on the sustained, sophisticated, deliberate acts of the respondent), the lack of comparable cases (because the present case was so serious, see [215] of the sentencing judgment extracted above), the need for general and specific deterrence and the relative paucity of factors in the respondent's favour (age and delay) was not reflected in the sentence imposed, which I regard as manifestly inadequate. I accept the Crown's submission that the findings were incongruous with the sentence imposed and that a more significant penalty was required in order to maintain confidence in the criminal justice system.

[51]

In respect of the application for leave to appeal against conviction (1) Refuse leave under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of each of grounds 2(a), (b) and (c).

[52]

In respect of the application for leave to appeal against sentence 1. Grant leave to appeal. 2. Dismiss the appeal.

[53]

In respect of the Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) 1. Allow the Crown appeal. 2. Quash the sentence imposed in the District Court on 17 December 2020 and in lieu, sentence the respondent, Vanda Russell Gould, to a total term of imprisonment of 6 years, commencing on 11 May 2020 and expiring on 10 May 2026, comprising a non-parole period of 3 years and 6 months and a balance of term of 2 years and 6 months. 3. The respondent will become eligible for release on parole upon the expiry of the non-parole period on 10 November 2023.

[54]

Amendments 10 May 2021 - paragraph [31] - changed "over-offence" to "over-riding offence" 12 May 2022 - paragraph [120] - "[5]" replaced by "[37]" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2022

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